UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 07-1584

MILDRED F. JONES; RONALD L. LAZZARINE; TAMMY LAZZARINE; 

NELLIE G. MOSES, on behalf of themselves and others 

similarly situated, 

 Plaintiffs – Appellants, 

 v. 

SEARS ROEBUCK AND COMPANY; SEARS HOLDING CORPORATION; SEARS 

NATIONAL BANK; CITIBANK (USA), N.A., their successors and 

assigns jointly and severally, 

 Defendants – Appellees. 

Appeal from the United States District Court for the Southern 

District of West Virginia, at Beckley. Thomas E. Johnston, 

District Judge. (5:06-cv-00345) 

Argued: September 23, 2008 Decided: November 10, 2008 

Before TRAXLER,1 KING, and DUNCAN, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

 1

 Judge Traxler participated in the oral argument of this 

case, and thereafter recused himself. This decision is thus 

rendered by a quorum of the panel pursuant to 28 U.S.C. § 46(d). 
ARGUED: Henry Drewry McCoy, II, Peterstown, West Virginia, for 

Appellants. Daniel Harris Squire, WILMER, CUTLER, PICKERING, 

HALE & DORR, L.L.P., Washington, D.C., for Appellees. ON BRIEF:

Raymond A. Bragar, BRAGAR, WEXLER & EAGEL, P.C., New York, New 

York, for Appellants. Rebecca J. K. Gelfond, Kelly Thompson 

Cochran, WILMER, CUTLER, PICKERING, HALE & DORR, L.L.P., 

Washington, D.C.; Christopher R. Lipsett, WILMER, CUTLER, 

PICKERING, HALE & DORR, L.L.P., New York, New York, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit. 

2 
PER CURIAM: 

 Mildred Jones, Ronald and Tammy Lazzarine, and Nellie G. 

Moses, on behalf of themselves and others (collectively, the 

“Plaintiffs”), appeal from an adverse judgment in their 

purported class action proceeding against Sears Roebuck & Co., 

Sears Holding Corporation, Sears National Bank, and Citibank 

USA, N.A. (collectively, the “Defendants”). The district court 

disposed of the relevant contentions in three steps: (1) 

denying the Plaintiffs’ motion to remand, Jones v. Sears Roebuck 

& Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 8, 2007) (the “Remand 

Denial”);2 (2) granting the Defendants’ motion to dismiss, Jones 

v. Sears Roebuck & Co., No. 5:06-cv-00345 (S.D. W. Va. Mar. 28, 

2007) (the “Dismissal Opinion”);3 and (3) denying the Plaintiffs’ 

motion for reconsideration, Jones v. Sears Roebuck & Co., No. 

5:06-cv-00345 (S.D. W. Va. May 18, 2007) (the “Reconsideration 

Denial”).4 On appeal, the Plaintiffs maintain that the court 

erred in dismissing their claims and declining to remand to 

state court, in denying reconsideration, in failing to conduct a 

 2

 The Remand Denial is found at J.A. 105-17. (Citations 

herein to “J.A. ___” refer to the contents of the Joint Appendix 

filed by the parties in this appeal.) 

3

 The Dismissal Opinion is found at J.A. 118-27. 

4

 The Reconsideration Denial is found at J.A. 129-30. 

3 
hearing on the motion to remand, and in failing to grant leave 

to amend. As explained below, we affirm. 

I. 

A. 

 This proceeding originated on November 18, 2003, in the 

Circuit Court of Raleigh County, West Virginia, when Mildred 

Jones and Ronald and Tammy Lazzarine (collectively, the 

“Original Plaintiffs”), filed suit against Sears National Bank 

(“SNB”) and Sears, Roebuck & Co. (“Sears”), on behalf of all 

West Virginia residents holding Sears credit cards. In that 

complaint (the “State Complaint”), the Original Plaintiffs made 

three claims: (1) seeking a declaration that the arbitration 

provision in their Sears credit card agreements was 

unconscionable (Count I); (2) seeking statutory damages under 

the West Virginia Consumer Credit and Protection Act (the 

“WVCCPA”) for unconscionable conduct (Count II); and (3) seeking 

declaratory and equitable relief under the WVCCPA because SNB 

and Sears failed to disclose trademark licensing relationships 

or place their addresses on credit cards, misleading class 

members as to the identification of the creditor (Count III).5 

On the face of the State Complaint, the words “Citibank USA, 

 5

 The State Complaint is found at J.A. 278-88. 

4 
N.A.” were handwritten in the caption, although Citibank was not 

mentioned in the factual allegations.6

 In February 2004, SNB and Sears filed a motion to dismiss 

the State Complaint, contending that Counts I and II failed to 

present any justiciable issues because the Original Plaintiffs 

had not alleged an underlying dispute or sought to invoke the 

arbitration provision, and that Count III failed to state a 

claim. In December 2005, the state court dismissed Counts I and 

II, explaining, 

(1) . . . [T]here exists no case or controversy 

between the parties sufficient to support this court’s 

exercise of its constitutional jurisdiction, or, in 

the alternative, (2) if constitutional jurisdiction 

exists, the proper exercise of this court’s discretion 

is that it should decline to consider declaratory 

relief as requested by the individual plaintiffs. 

Jones v. Sears, Roebuck & Co., No. 03-C-1011-B, slip op. at 6 

(W. Va. Cir. Ct. Dec. 15, 2005) (the “State Court Opinion”).7 

The state court also dismissed Count III, ruling that the 

Original Plaintiffs had not proffered any legal basis for the 

argument that a credit card issuer must disclose certain 

geographic licensing and trademark information to its customers. 

 6

 The state court declined to treat Citibank as a party to 

the State Complaint because no factual allegations were made 

against it. 

7

 The State Court Opinion is found at J.A. 313-20. 

5 
Id. at 8. Notably, the state court dismissed the State 

Complaint without certifying the class. 

 Subsequently, on March 9, 2006, the Plaintiffs — the 

Original Plaintiffs plus Nellie Moses — filed an amended 

complaint in the state court that the Defendants removed to 

federal court (the “Federal Complaint”).8 The Plaintiffs therein 

added Citibank and Sears Holdings Corporation (“SHC”) as 

defendants.9 The Federal Complaint alleges five counts, with 

Counts I through III being substantially the same as Counts I 

through III of the State Complaint. 

 Count IV of the Federal Complaint alleges violations of (1) 

a Federal Trade Commission (“FTC”) consent decree, and (2) the 

WVCCPA, on behalf of Moses and other Plaintiffs. Count IV 

asserts that Sears’s actions violated an FTC consent decree 

forbidding Sears to “[c]ollect any debt . . . that has been 

legally discharged in bankruptcy proceedings and that respondent 

is not permitted by law to collect.” In the Matter of Sears 

 8

 The Federal Complaint is found at J.A. 13-34. 

9

 According to the Federal Complaint, Citibank is a 

“successor and assignee in interest” of Sears credit card 

accounts because Citibank acquired the accounts in November of 

2003 for approximately $3.5 billion. Federal Complaint ¶ 7. It 

further alleges that SHC is the parent company that resulted 

from a merger between Sears and KMart Corporation in March 2005, 

that SHC took the place of Sears on the New York Stock Exchange, 

and that SHC is the parent corporation of Sears. 

6 
Roebuck & Co., FTC File No. 972-3187 (June 4, 1997) (the 

“Consent Decree”).10 Count IV further alleges that Sears 

contravened the Consent Decree because it had initiated an 

action against Moses in state court in January 2001 — the year 

after her liability had been discharged due to Chapter 7 

bankruptcy — to enforce a security interest in goods she 

purchased using a Sears credit card (the “Collection Suit”). 

The Collection Suit was dismissed in March 2002 for 

nonprosecution, but allegedly violated the WVCCPA because 

Sears’s conduct constituted “unfair methods of competition and 

unfair or deceptive acts or practices.” W. Va. Code § 46A-6-

104.11 

 Count V of the Federal Complaint contains the same 

allegations as Counts I through IV, and is asserted on behalf of 

a limited subclass of plaintiffs (“Subclass A”), namely, all 

Sears credit card holders in West Virginia (1) who held credit 

cards between the filing of the Consent Decree (June 4, 1997), 

and the filing of the Federal Complaint (November 18, 2003), and 

(2) against whom Sears or SNB enforced or sought to enforce a 

 10 The Consent Decree is found at J.A. 70-78. 

11 The entire text of West Virginia Code section 46A-6-104 

provides, “Unfair methods of competition and unfair or deceptive 

acts or practices in the conduct of any trade or commerce are 

hereby declared unlawful.” 

7 
security interest while the card agreements contained the 

arbitration provision. 

B. 

 On May 10, 2006, Citibank removed the Federal Complaint to 

the Southern District of West Virginia, pursuant to 28 U.S.C. § 

1446 and a Class Action Fairness Act (“CAFA”) provision, 28 

U.S.C. § 1453. The Plaintiffs moved to remand to state court, 

and the district court denied the motion. On May 17, 2006, all 

Defendants (SNB, Sears, SHC, and Citibank) sought dismissal of 

the Federal Complaint, and the court filed the Dismissal Opinion 

on March 28, 2007. In its ruling, the court made the following 

conclusions: (1) Counts I and II are not justiciable under 

Article III of the Constitution of the United States because 

they present no case or controversy; (2) the state court’s 2005 

dismissal of Count III should stand, pursuant to the law of the 

case doctrine; (3) Count IV does not state a claim under the 

terms of the Consent Decree or under West Virginia law; and (4) 

Count V simply restated the other counts on behalf of a limited 

subclass of plaintiffs, and therefore should also be dismissed. 

 By letter of February 23, 2007, the Plaintiffs had 

informally suggested that the district court conduct a 

“preliminary hearing” before it disposed of the motion to 

remand. The Plaintiffs later sought reconsideration of the 

Dismissal Opinion, and the court filed its Reconsideration 

8 
Denial on May 18, 2007, explaining that the Plaintiffs were 

rehashing old arguments or raising assertions that could have 

been made earlier. In seeking reconsideration, the Plaintiffs 

also sought leave to amend, and the Reconsideration Denial did 

not explicitly refer to the amendment request. The Plaintiffs 

have timely noted this appeal, and we possess jurisdiction 

pursuant to 28 U.S.C. § 1291. 

II. 

 We review de novo issues of standing and justiciability. 

Piney Run Pres. Ass’n v. County Comm’rs, 268 F.3d 255, 262 (4th 

Cir. 2001). We also review de novo a district court’s dismissal 

for failure to state a claim upon which relief can be granted. 

Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999). By 

contrast, we review for abuse of discretion a district court’s 

denial of a motion for reconsideration or a request for leave to 

amend. Ingle v. Yelton, 439 F.3d 191, 197 (4th Cir. 2006) 

(providing standard for denial of reconsideration); Franks v. 

Ross, 313 F.3d 184, 192 (4th Cir. 2002) (explaining standard for 

denial of leave to amend). 

III. 

 This appeal challenges the Dismissal Opinion’s rulings 

(1) that Counts I and II are not justiciable under Article III, 

9 
and thus subject to dismissal, because each fails to present a 

case or controversy; (2) that dismissal of Count III was 

mandated under the law of the case doctrine; (3) that Count IV 

fails to allege a claim under either the FTC Consent Decree or 

West Virginia law; and (4) that Count V simply restates the 

other counts on behalf of a limited subclass of plaintiffs, and 

therefore must be dismissed as well. The Plaintiffs also 

contend that the court erred in the Remand Denial, the 

Reconsideration Denial, and in failing to grant leave to amend. 

As explained below, we affirm the Dismissal Opinion on the 

following bases: Counts I and II because the Plaintiffs lack 

standing; Count III as to the Original Plaintiffs under the law 

of the case doctrine, and because the added Plaintiffs lack 

standing; and Counts IV and V for lack of standing. 

A. 

 First of all, we assess the district court’s dismissal of 

Counts I and II of the Federal Complaint. In Count I, the 

Plaintiffs seek declaratory relief under the West Virginia 

Declaratory Judgment Act,12 maintaining that the arbitration 

 12 Although the State Complaint purported to invoke West 

Virginia’s Declaratory Judgment Act, we apply the federal 

Declaratory Judgment Act in this proceeding. See 28 U.S.C. § 

2201; Chapman v. Clarendon Nat’l Ins. Co., 299 F. Supp. 2d 559, 

562-63 (E.D. Va. 2004) (holding that removal of state 

declaratory judgment action invokes § 2201). 

10 
provisions of the Sears credit card agreements are 

unconscionable. They claim that the agreements unlawfully bar 

participation in class actions, prevent access to the courts, 

and unconstitutionally deprive them of their right to a jury 

trial. In Count II, the Plaintiffs allege violations of the 

WVCCPA and claim statutory damages. As explained below, we 

agree that Counts I and II fail to present a justiciable case or 

controversy under Article III of the Constitution. 

 A federal court may exercise its jurisdiction in a 

declaratory judgment proceeding only when “the complaint alleges 

an actual controversy between the parties of sufficient 

immediacy and reality to warrant issuance of a declaratory 

judgment.” Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 

386 F.3d 581, 592 (4th Cir. 2004) (internal quotation marks 

omitted). In order to satisfy this requirement, a plaintiff 

must possess standing to sue, meaning that a claim must present 

a “controversy that qualifies as an actual controversy under 

Article III of the Constitution.” Id. Standing encompasses 

three components: “(1) the plaintiff must allege that he or she 

suffered an actual or threatened injury that is not conjectural 

or hypothetical, (2) the injury must be fairly traceable to the 

challenged conduct, and (3) a favorable decision must be likely 

to redress the injury.” Miller v. Brown, 462 F.3d 312, 316 (4th 

11 
Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 

560-61 (1992)). 

 In light of our decision in Volvo, Count I fails to show an 

actual or threatened injury that rises to the level of a case or 

controversy. Volvo also concerned a claim for declaratory 

relief, and although we found a controversy present, we observed 

that one is not present when “the defendant ha[s] not taken any 

action, even of a preliminary nature, against the plaintiff, and 

the defendant ha[s] not indicated that it intend[s] to take any 

future legal action against the plaintiff.” 386 F.3d at 592 

n.12 (distinguishing N. Jefferson Square Assocs. v. Va. Hous. 

Dev. Auth., 94 F. Supp. 2d 709, 714 (E.D. Va. 2000)). Such is 

precisely the situation at hand: none of the Defendants has 

threatened to invoke the arbitration provision, and none of the 

Plaintiffs has alleged an underlying dispute that might 

legitimately progress to that point. 

 The Plaintiffs apparently added Moses as a named plaintiff 

in the Federal Complaint to correct their standing problem, as 

evidenced by their present contention that “only one plaintiff 

must have standing in order that a federal court have 

jurisdiction over a class action suit under Article III.” Br. 

of Appellants 17 (citing Bowsher v. Synar, 478 U.S. 714, 721 

(1986)). The addition of plaintiff Moses, however, fails to 

cure the Plaintiffs’ standing problem. Moses was subjected to 

12 
the Collection Suit by Sears in 2001, and the Plaintiffs 

maintain that it “relegate[ed] her solely to arbitration under 

NAF [National Arbitration Forum] auspices.” Id. at 22. In 

other words, the Plaintiffs contend, if Moses had filed a 

counterclaim in the Collection Suit, she would likely have had 

to submit to arbitration in an NAF forum. 

 Assuming the validity of such an assertion, it does not 

raise Moses’s claim in Count I to an Article III case or 

controversy. Declaratory judgment actions must allege disputes 

that are “real and substantial and admi[t] of specific relief 

through a decree of a conclusive character, as distinguished 

from an opinion advising what the law would be upon a 

hypothetical state of facts.” MedImmune, Inc. v. Genetech, 

Inc., 127 S. Ct. 764, 771 (2007) (internal quotation marks 

omitted). As with other Plaintiffs, Sears neither invoked nor 

threatened to invoke the arbitration provision of Moses’s credit 

card agreement, and any ruling made here on the arbitration 

provision would constitute an advisory opinion. 

 The Plaintiffs also maintain on appeal that a district 

court “should refuse to entertain a declaratory judgment only 

for good cause.” Br. of Appellants 27 (citing Aetna Cas. & 

Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937)). The 

lack of standing is sufficient good cause, however; it is the 

“threshold question in every federal case, determining the power 

13 
of the court to entertain the suit.” Warth v. Seldin, 422 U.S. 

490, 498 (1975). Thus, in the absence of an injury and with no 

“real and substantial” dispute, the court properly declined to 

entertain Count I upon removal. 

 In its Dismissal Opinion, the district court compared this 

proceeding to the situation in Bowen v. First Family Financial

Services, Inc., 233 F.3d 1331 (11th Cir. 2000). In Bowen, the 

class action plaintiffs lacked standing to question whether 

arbitration agreements are generally unenforceable under the 

Truth-in-Lending Act. The Eleventh Circuit so ruled because 

“there [was] no allegation that First Family has invoked, or 

threatened to invoke, the arbitration agreement to compel the 

plaintiffs to submit any claim to arbitration.” Id. at 1339.13 

 13 The Eleventh Circuit addressed two separate standing 

issues in Bowen: first, under the Truth-in-Lending Act and 

second, under the Equal Credit Opportunity Act (the “ECOA”). 

Although the court ruled that the plaintiffs did not possess 

standing to pursue a Truth-in-Lending Act claim, it concluded 

that they possessed standing to challenge the defendant’s 

requirement that customers must execute arbitration agreements 

as a condition of credit under the ECOA. But the plaintiffs’ 

standing only arose from the ECOA itself, which creates an 

explicit cause of action for consumers who are discriminated 

against “with respect to any aspect of a credit transaction” 

because they “in good faith, exercise[] any right under [the 

Consumer Credit Protection Act].” Bowen, 233 F.3d at 1334-35 

(citing 15 U.S.C. § 1691(a)). In so ruling, the court of appeals 

reasoned that “[t]he difference is that the plaintiffs were 

required to and did sign the arbitration agreement, but there 

has been no occasion for First Family to attempt to enforce it 

against them.” Id. at 1339. The matter on appeal is more 

analogous to the Truth-in-Lending Act claim because these 

(Continued) 

14 
This action is similar to Bowen because the Plaintiffs have not 

sufficiently alleged that the Defendants either invoked or 

threatened to invoke the arbitration provision of the Sears 

credit card agreements. 

 We thus agree, in disposing of Count I, with the courts 

that have deemed a challenge to an arbitration provision, in the 

absence of an underlying dispute or imminent injury, to be 

nonjusticiable. See, e.g., Bowen, 233 F.3d 1331; Lee v. Am. 

Express Travel Related Servs., No. 07-04765, 2007 WL 4287557, at 

*5 (N.D. Cal. Dec. 6, 2007) (concluding that plaintiffs “have 

not and cannot allege any damage because they do not have a 

dispute with defendants that they tried unsuccessfully to 

litigate as a class action”); Rivera v. Salomon Smith Barney 

Inc., No. 01 Civ. 9282, 2002 WL 31106418, at *6-7 (S.D.N.Y. 

Sept. 20, 2002) (recognizing that plaintiff lacked standing to 

seek declaratory relief on arbitration provision because she did 

not “file[] or serve[] any lawsuit alleging that [defendant] . . 

. [or] anyone representing any of the defendants has informed 

her that they will seek to invoke the Arbitration Policy”); 

Tamplenizza v. Josephthal & Co., 32 F. Supp. 2d 702, 704 

 

Plaintiffs do not allege that they were coerced into signing an 

arbitration provision in exchange for exercising a statutory 

right. 

15 
(S.D.N.Y. 1999) (recognizing as nonjusticiable challenge to 

arbitration provision, absent sufficient indications that it 

would be invoked). Notably, some courts have premised such 

decisions on the ripeness doctrine. See Ruckelshaus v. Monsanto 

Co., 467 U.S. 986, 1019-20 (1984) (recognizing lack of ripeness 

on whether arbitration will provide reasonable compensation, 

where plaintiff "did not allege or establish that it had been 

injured by actual arbitration under the statute”); Bd. of Trade 

v. Commodity Futures Trading Comm’n, 704 F.2d 929, 932 (7th Cir. 

1983) (concluding that threatened enforcement of arbitration 

rule did not establish ripeness). 

 The Plaintiffs rely on the Second Circuit’s decision in 

Ross v. Bank of America, N.A., for the proposition that they 

suffered an injury-in-fact and therefore possess standing. See

524 F.3d 217 (2d Cir. 2008). In Ross, a group of plaintiffs 

sued Bank of America and Citibank, among others, because their 

credit card agreements included provisions imposing arbitration 

“as the sole method of resolving disputes relating to the credit 

accounts” and disallowing class action proceedings. Id. at 220. 

The Ross plaintiffs, however, were pursuing a different 

proposition than we face here. They claimed that the agreements 

violated the antitrust statutes because the banks had colluded 

“to constrict the options available to cardholders”; they did 

not simply allege that the provision alone caused them injury. 

16 
Id. at 223. The Second Circuit held that the plaintiffs 

possessed standing “in terms of the antitrust injuries that the 

cardholders have asserted,” observing that “one form of 

antitrust injury is ‘[c]oercive activity that prevents its 

victims from making free choices.’” Id. (emphasis added) 

(quoting Associated Gen. Contractors of Cal., Inc. v. Cal. State 

Council of Carpenters, 459 U.S. 519, 528 (1983)). Our situation 

is distinguishable — the Plaintiffs have not alleged antitrust 

violations or collusion by credit card companies. We thus agree 

with the Defendants that Ross does not support the Plaintiffs’ 

argument on standing.14 

 Turning to Count II, we recognize that this claim turns on 

the possibility of collecting damages under the WVCCPA for the 

 14 The Plaintiffs also rely on Arnold v. United Cos. Lending 

Corp., for the proposition that an arbitration agreement 

“contain[ing] a substantial waiver of the borrower’s rights . . 

. while preserving the lender’s right to a judicial forum . . . 

is unconscionable.” 511 S.E.2d 854, 862 (W. Va. 1988). Arnold, 

however, involved certified questions concerning arbitration 

provisions, and the ruling was premised on the presumption that 

“some controversy remains before the circuit court.” Id. at 

858. Thus, Arnold did not present a standing issue. The 

Plaintiffs also rely on State ex rel. Dunlap v. Berger, and 

assert that arbitration provisions are unconscionable because 

they are rarely read or understood by cardholders. 567 S.E.2d 

265, 274 (W. Va. 2002). Dunlap addressed the merits of the 

unconscionability issue only, not the question of standing. Id.

at 269. These West Virginia decisions thus do not aid our 

analysis. 

17 
Defendants’ conduct.15 The Plaintiffs contend that Moses and the 

other Plaintiffs seek to “redress th[e] wrong” of allegedly 

unconscionable arbitration provisions under West Virginia law. 

Br. of Appellants 25. In order to award damages, however, a 

court would be required to first decide that the arbitration 

provisions are unconscionable, or that the Defendants engaged in 

unconscionable conduct. Because we have already concluded that 

this issue is nonjusticiable, the Plaintiffs lack Article III 

standing to pursue Count II. 

B. 

 We must now analyze the issues presented with respect to 

the district court’s dismissal of Count III of the Federal 

Complaint. As explained below, we also affirm the Dismissal 

Opinion with respect to this claim. 

 We first examine the Plaintiffs’ contention that the 

district court erroneously dismissed Count III of the Federal 

Complaint, which alleges that Defendants engaged in unfair and 

 15 In Count II, the Plaintiffs claim $1,000 for each 

violation of the WVCCPA, under sections 46A-5-101 and/or 46A-5-

105. Section 46A-5-101(1) provides that a debtor who can show 

that his or her creditor violated Chapter 46A “has a cause of 

action to recover actual damages and . . . a penalty [of] . . . 

not less than one hundred dollars nor more than one thousand 

dollars.” Pursuant to section 46A-5-105, “if a creditor has 

willfully violated the provisions of this chapter, . . . in 

addition to the remedy provided in [section 46A-5-101], the 

court may cancel the debt when the debt is not secured by a 

security interest.” 

18 
deceptive trade practices, in violation of the WVCCPA. More 

specifically, it asserts that, in failing to disclose their 

trademark licensing relationships and their physical addresses 

on credit cards, the Defendants misled the class members with 

respect to the corporate entities and geographical addresses of 

their creditors. For such deceptive practices, the Plaintiffs 

maintain that section 46A-6-106 of the WVCCPA permits them to 

collect statutory damages of $200 per violation. Because the 

state court dismissed Count III with respect to the original 

parties only, we will separately examine the Plaintiffs’ 

contentions with regard to both the original parties and the 

added parties. 

1. 

 In 2005, the state court dismissed Count III of the State 

Complaint under West Virginia Rule 12(b)(6), for failure to 

state a claim upon which relief can be granted. The Dismissal 

Opinion dismissed the virtually identical Count III of the 

Federal Complaint under the law of the case doctrine and 28 

U.S.C. § 1450.16 Pursuant to the law of the case doctrine, “a 

 

(Continued) 

16 The Plaintiffs contend that Count III of the Federal 

Complaint contains “material revisions” from the State 

Complaint. Br. of Appellants 33. This contention is without 

merit, however, because the only revisions made to the Federal 

Complaint are not materially distinct allegations. First, the 

Plaintiffs simply added the allegation that Sears and SNB were 

likely not the true and correct owners of the accounts because 

19 
court should not reopen issues decided in earlier stages of the 

same litigation.” Agnostini v. Felton, 521 U.S. 203, 236 

(1997). Similarly, under § 1450, “[a]ll injunctions, orders, 

and other proceedings had in such [state court] action prior to 

its removal shall remain in full force and effect until 

dissolved or modified by the district court.” See also Granny 

Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers 

Local No. 70, 415 U.S. 423, 436 (1974) (“After removal, the 

federal court ‘takes the case up where the State court left it 

off.’” (quoting Duncan v. Gegan, 101 U.S. 810, 812 (1880))). As 

the Supreme Court explained in Granny Goose Foods, in 

recognizing that the underlying state court rulings are 

effective in federal court, the interests of judicial economy 

 

they sold them as “securitized assets” to unknown parties. 

Federal Complaint ¶ 19, n.2. Second, the Plaintiffs contend 

that the Federal Complaint alleges — in contrast to the State 

Complaint — that SNB has disappeared or has been liquidated. 

These revisions merely reflect a change in the Defendants’ 

situation, however, and do not affect the state court’s 

dismissal of its Count III. Third, the Plaintiffs also claim 

that they added specific statutes to Count III of the Federal 

Complaint. These are all grounded in West Virginia law, 

however, and the state court ruled that the Original Plaintiffs 

have failed to allege a cause of action under West Virginia law. 

Finally, the Dismissal Opinion correctly observed that, in 

response to the Defendants’ motion to dismiss the Federal 

Complaint, the Plaintiffs addressed Count III simply by 

incorporating by reference the arguments they had made in state 

court. 

20 
are promoted and the parties’ rights are protected. See 415 

U.S. at 435-36. 

 Although most of the decisions invoking § 1450 relate to 

state court injunctions and interlocutory rulings in removed 

federal cases, their reasoning extends to proceedings such as 

this, where a federal court must address a claim that has been 

previously dismissed in state court. The utilization of § 1450 

in this setting thus advances the principles that it seeks to 

promote — judicial economy and protection of the parties’ rights 

— and also implicates the law of the case doctrine. In sum, the 

Plaintiffs have not presented us with any reason for disturbing 

the state court’s ruling on Count III as to the Original 

Plaintiffs. 

2. 

 Because Citibank and SHC were first made defendants in the 

Federal Complaint (the state court found that Citibank was not a 

defendant in the State Complaint), we must assess Count III with 

regard to these additional defendants. Similarly, because Moses 

and the Subclass A plaintiffs were added as plaintiffs in the 

Federal Complaint, we must analyze Count III as to them. As 

explained below, the new plaintiffs lack standing to pursue 

Count III against Citibank and SHC because the Federal Complaint 

fails to sufficiently allege an injury or threatened injury. 

 In that respect, the Plaintiffs contend that the Defendants 

21 
engage in a definite and elaborate scheme and unfair 

method of doing business so that consumers and credit 

cardholders may not readily locate either any 

telephone number or physical mailing address or actual 

place of business other than post office boxes and 

other than so-called “Customer Service” 800 numbers. 

Federal Complaint ¶ 57. The Plaintiffs also allege that “Sears 

National Bank is not in fact and in law the owner of the 

trademarks” of the credit cards, as Sears has led its consumers 

to believe. Id. at ¶ 55. The Plaintiffs allege that Sears and 

Citibank caused SNB to be liquidated and dissolved, “without any 

merger or supersedes clauses in any agreement upon which a Sears 

cardholder may rely,” and classify the Defendants’ actions as a 

“classic ‘shell’ game.” Id. at ¶ 56, 58. They assert that 

Citibank continues a pattern of “deceptive practices” and 

“should similarly be enjoined from such practices” for violation 

of West Virginia Code section 46A-6-102(f)(3), (f)(4).17 Id. at 

¶ 60. 

 The Plaintiffs have failed, however, to explain how they 

were or could be injured by the alleged “tremendous confusion” 

created by defendants’ conduct. Federal Complaint ¶ 56. The 

solution to this problem, they maintain, is that Citibank 

 17 Under the WVCCPA, “unfair trade practices” include: 

“[c]ausing likelihood of confusion or of misunderstanding as to 

affiliation, connection or association with or certification by 

another” and “[u]sing deceptive representations or designations 

of geographic origin in connection with goods or services.” W. 

Va. Code § 46A-6-102(7)(C),(7)(D) (renumbered 2005). 

22 
“should be ordered to place the physical location and street 

address on their credit cards as to where a cardholder may 

dispute dealings of defendants, including service of legal 

process.” Id. at 60. Again, they fail to explain how such a 

mandate would have assisted them in locating the Defendants, or 

how any of the Plaintiffs were harmed by the absence of such a 

disclosure. 

 Although the Plaintiffs seek to utilize the WVCCPA as a 

means to secure standing, this effort also fails. The WVCCPA 

provides that “unfair methods of competition and unfair or 

deceptive acts or practices” include 

[t]he act, use or employment by any person of any 

deception, fraud, false pretense, false promise or 

misrepresentation, or the concealment, suppression or 

omission of any material fact with intent that others 

rely upon such concealment, suppression or omission, 

in connection with the sale or advertisement of any 

goods or services, whether or not any person has in 

fact been misled, deceived or damaged thereby. 

W. Va. Code § 46A-6-102(7)(M) (emphasis added). In order to 

invoke this provision, however, a plaintiff is obliged to plead 

with particularity that defendants have fraudulently 

misrepresented their identity to consumers, or intended that 

others rely on the omission of a correct address and phone 

number. See Fed. R. Civ. P. 9(b). No such pleading was 

presented, and a cursory reference to a “shell game” and “a 

pattern of deceptive practices” is simply not sufficiently 

23 
particular to proceed. See Garvin v. S. States Ins. Exch. Co., 

329 F. Supp. 2d 756, 760 (N.D. W. Va. 2004) (concluding that, on 

fraud claims, elements pleaded with particularity include time, 

place, and contents of false representations), aff’d, No. 05-

1812, 2006 U.S. App. LEXIS 1593 (4th Cir. Jan. 23, 2006). 

 Finally, although the Plaintiffs allege in Count III that 

locating the actual place of business of the Defendants causes 

extreme difficulty, the state court observed that “[t]his is a 

rather difficult point for Plaintiffs to maintain because they 

have, it seems, managed to sue the Defendants.” State Court 

Opinion 7. In any event, the Sears credit card agreement states 

that SNB, as issuer, is an affiliate of Sears. J.A. 51 

(defining “we,” “us,” and “our” as “Sears National Bank (an 

affiliate of Sears) or any subsequent holder of the account or . 

. . any servicer of your account authorized by us”). For these 

reasons, the Dismissal Opinion must be affirmed as to Count III 

— with respect to both Moses and the Subclass A plaintiffs —

because they lack standing to pursue it. 

C. 

 Having disposed of the three counts that were first pursued 

in the State Complaint, we turn to Counts IV and V, the claims 

alleged for the first time in the Federal Complaint. We begin 

with Count IV. 

24 
1. 

 The district court dismissed Count IV under Rule 12(b)(6) 

for failure to state a claim upon which relief can be granted. 

If we disagree with that ruling, we are nonetheless entitled to 

affirm on different grounds “if fully supported by the record.” 

Brewster of Lynchburg, Inc. v. Dial Corp., 33 F.3d 355, 361 n.3 

(4th Cir. 1994). Because this record reveals that none of the 

Plaintiffs — i.e., the Original Plaintiffs, the Subclass A 

plaintiffs, or Moses — has standing to pursue Count IV, we 

affirm for that reason. See Davis v. Fed. Election Comm’n, 128 

S. Ct. 2759, 2769 (2008) (“A party facing prospective injury has 

standing to sue where the threatened injury is real, immediate, 

and direct.”); Bowen, 233 F.3d at 1340 (“A threatened injury 

must be ‘certainly impending’ to constitute injury in fact.” 

(quoting Whitmore v. Arkansas, 495 U.S. 149, 158 (1990))). 

 In Count IV, the Plaintiffs allege violations of the 

Consent Decree and seek statutory damages for violations of the 

WVCCPA (specifically section 46A-6-104). In the Decree, Sears 

was ordered not to “[c]ollect any debt (including any interest, 

fee, charge, or expense, incidental to the principal obligation) 

that has been legally discharged in bankruptcy proceedings and 

that respondent is not permitted by law to collect.” Consent 

Decree 3. Count IV alleges that Sears violated the Decree and 

the WVCCPA by filing the Collection Suit. 

25 
 The state court terminated the Collection Suit in March 

2002 for nonprosecution, and Count IV fails to plead any facts 

to show that Sears had “collect[ed] any debt” from Moses either 

before or after termination of the Collection Suit. The 

Plaintiffs contend, however, that “the law suit [sic], 

nonetheless, constitutes . . . a continuing violation of the 

[Consent Decree] . . . until the date of [the Collection Suit’s] 

dismissal.” Federal Complaint ¶ 43. To the contrary, the 

Collection Suit could not be classified as a threatened 

violation of the Consent Decree. 

 The Collection Suit sought the enforcement of a security 

interest, not the collection of a debt, and “[a] discharge in 

bankruptcy . . . ordinarily does not wipe out previously 

perfected security interests in tangible personal property. The 

lienholder retains a right of repossession, subject, however, to 

the bankrupt’s possible right of redemption.” Arruda v. Sears

Roebuck & Co., 310 F.3d 13, 16 (1st Cir. 2002); see also Farrey 

v. Sanderfoot, 500 U.S. 291, 297 (1991) (“Ordinarily, liens and 

other secured interests survive bankruptcy.”); Johnson v. Home 

St. Bank, 501 U.S. 78, 83 (1991) (concluding that Chapter 7 

liquidation “extinguishes only the personal liability of the 

debtor” (internal quotation marks omitted) (emphasis in 

original)). Because the Consent Decree addressed conduct not 

26 
alleged in Count IV, that claim fails to allege an injury, or a 

threatened or imminent injury. 

2. 

 The Plaintiffs also allege in Count IV that Sears’s conduct 

— filing suit against Moses while knowing that she had filed 

bankruptcy, and its purported violation of the Consent Decree —

entitles them to recover statutory damages under the WVCCPA. 

This aspect of Count IV also fails, however, because Moses and 

the Subclass A plaintiffs lack standing to collect such damages. 

 In Orlando v. Finance One of West Virginia, Inc., the 

Supreme Court of Appeals of West Virginia ruled that a plaintiff 

cannot collect damages under sections 46A-6-102(f) or 46A-6-104 

of the WVCCPA if he “ha[s] suffered no ‘ascertainable loss of 

money or property’ as a result of the inclusion of” an allegedly 

unconscionable provision in a contract. 369 S.E.2d 882, 888 (W. 

Va. 1988) (quoting W. Va. Code § 46A-6-106). In Orlando, the 

plaintiffs challenged a purported waiver of a homestead and 

personal property exemption in their loan contract with Finance 

One. Id. at 883. After the Plaintiffs defaulted on their loan, 

Finance One instituted collection activities. It did not, 

however, seek judicial enforcement of the waiver clause. Id. 

As in this proceeding, the plaintiffs sued Finance One for a 

declaration that the waiver clause was unconscionable, and 

27 
seeking statutory penalties under the WVCCPA because inclusion 

of the clause was an unfair and deceptive act or practice. Id.

 The state supreme court concluded that the Orlando

plaintiffs could not collect damages for violations of the 

WVCCPA because “Finance One made no attempt to enforce [the 

waiver clause],” and, therefore, “[plaintiffs] suffered no 

ascertainable loss of money or property.” Orlando, 369 S.E.2d 

at 888. Similarly, Moses and the other Plaintiffs have never 

alleged a loss of money or property due to the inclusion of an 

alleged unconscionable provision in their credit card 

agreements. In such circumstances, they lack standing to pursue 

a claim for damages under Count IV.18 

D. 

 Count V purports to reallege the allegations of Counts I 

through IV on behalf of Subclass A, a limited number of 

plaintiffs who held credit cards between June 4, 1997, and 

November 18, 2003, and against whom Sears or SNB either enforced 

or attempted to enforce a security interest while the cardholder 

 18 The Plaintiffs also make an argument with respect to 

common law fraud. This issue was mentioned in passing in the 

Federal Complaint, but nothing was pleaded “with particularity” 

pursuant to Rule 9(b). The district court did not address this 

point, and neither do we. See In re Wallace and Gale Co., 385 

F.3d 820, 835 (4th Cir. 2004) (observing that failure to raise 

argument before district court results in waiver on appeal, 

absent exceptional circumstances). 

28 
agreement contained the arbitration provision. These 

plaintiffs, however, have no greater cognizable injuries or 

causes of action than the other plaintiffs, as they have not 

shown either the invocation or the impending invocation of the 

arbitration provision. Furthermore, because Moses satisfies the 

requirements of Subclass A, the conclusions we have made 

regarding Moses are attributable to the Subclass A plaintiffs. 

We thus affirm the dismissal of Count V for lack of standing. 

E. 

 Finally, we turn to the Plaintiffs’ several allegations of 

procedural error. First and foremost, we are generally unable 

to review the propriety of the denial of a motion to remand. 

“It is, of course, beyond question that an order of a district 

court denying a motion to remand, standing alone, is not a final 

order appealable under 28 U.S.C. § 1291.” Three J Farms, Inc. 

v. Alton Box Bd. Co., 609 F.2d 112, 114 (4th Cir. 1979). 

Nevertheless, the Plaintiffs argue that this case was improperly 

removed and that we can now address that issue. In Aqualon Co. 

v. Mac Equipment, Inc., however, we recognized that, even if 

removal was improper, the judgment should not be disturbed if 

the court possessed jurisdiction to enter it. See 149 F.3d 262, 

264 (4th Cir. 1998). Because the district court possessed 

subject matter jurisdiction, we will not disturb the Remand 

Denial. 

29 
 The district court properly concluded under CAFA that it 

possessed subject matter jurisdiction at the time of judgment. 

See 28 U.S.C. § 1332(d).19 Under CAFA, a class action may be 

initiated in federal court if (1) the controversy exceeds the 

sum or value of $5,000,000; (2) the claim was originally filed 

as a class action under Rule 23 of the Federal Rules or a 

comparable state statute; and (3) any member of the class of 

plaintiffs is a citizen of a state different from any defendant. 

28 U.S.C. § 1332(d)(1)(B), (d)(2)(A). Here, the Federal 

Complaint seeks damages of approximately $370 million; the claim 

was filed under West Virginia Rule 23 (governing class actions); 

and the Plaintiffs are citizens and residents of West Virginia, 

while the Defendants are citizens of Illinois, South Dakota, and 

Arizona. In those circumstances, the court possessed diversity 

jurisdiction over the Federal Complaint. 

 The Plaintiffs contend, however, that the CAFA provisions 

do not apply to the Federal Complaint, because the State 

Complaint was filed in November 2003, prior to CAFA being 

enacted. CAFA became effective in February 2005 and, according 

to the Plaintiffs, the Federal Complaint relates back to 

November 2003. It is uncontested that CAFA applies to any suit 

 19 Although the Remand Denial concluded that the court 

possessed diversity jurisdiction under CAFA, it appears to have 

also possessed diversity jurisdiction under § 1332(a). 

30 
commenced on or after February 18, 2005. See Pub. L. No. 109-2, 

§ 9, 119 Stat. 14 (2005); Adams v. Ins. Co. of N. Am., 426 F. 

Supp. 2d 356, 367 (S.D. W. Va. 2006). The Remand Denial 

correctly determined, however, that CAFA applies here, 

concluding that the Federal Complaint “commenced” a new action 

when it was filed in 2006, because it alleged claims that were 

“factually and legally distinct” from those in the State 

Complaint. Remand Denial 8. 

 Because state law controls the issue of whether an amended 

complaint has “commenced” a new action, we look to West Virginia 

Rule of Civil Procedure 15(c) for guidance. See Adams, 426 F. 

Supp. 2d at 370. Pursuant thereto, an amendment of a complaint 

relates back when it “ar[ises] out of the conduct, transaction, 

or occurrence set forth or attempted to be set forth in the 

original pleading.” W. Va. R. Civ. P. 15(c)(2). In other 

words, a complaint will relate back when its amendments “state a 

cause of action growing out of the specified conduct of the 

defendant which gave rise to the original cause of action.” 

Adams, 426 F. Supp. 2d at 375 (citing Roberts v. Wagner 

Chevrolet-Olds, Inc., 258 S.E.2d 901, 903 (W. Va. 1979)). It 

follows that, if an amended complaint states a claim growing out 

of conduct distinct from the original complaint, the amended 

complaint does not relate back. 

31 
 In this situation, Counts IV and V present new claims that 

are premised on conduct and occurrences that are readily 

distinct from the allegations of the State Complaint, and the 

Federal Complaint thus does not relate back. For example, the 

Federal Complaint alleges Sears’s enforcement of its security 

interests and violation of the Consent Decree, and it added 

Moses and a new subclass of plaintiffs presumably affected by 

such conduct. Because these are distinct and new allegations, 

the Federal Complaint does not, pursuant to state Rule 15(c)(2), 

relate back to the filing of the State Complaint. CAFA thus 

applies here, and the district court possessed subject matter 

jurisdiction of the Federal Complaint. Any alleged procedural 

deficiency in the removal process thus does not affect the final 

judgment of the district court.20 

 20 The district court did not abuse its discretion in filing 

the Reconsideration Denial and denying the Plaintiffs’ request 

for amendment of the Federal Complaint. First, we have 

recognized three potential grounds for reconsideration: (1) to 

accommodate an intervening change in controlling law, (2) to 

account for new evidence not available at trial, or (3) to 

correct a clear error of law to prevent manifest injustice. 

Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993). The 

Plaintiffs did not assert any of these grounds; thus, their 

motion was properly denied. The court also did not abuse its 

discretion in declining to grant leave to amend the Federal 

Complaint. In Healthsouth Rehabilitation Hospital v. American

National Red Cross, we explained that disposition of a motion to 

amend lies within the sound discretion of the district court. 

101 F.3d 1005, 1010 (4th Cir. 1996). The court need not 

articulate grounds for denying leave to amend, “as long as its 

reasons are apparent.” Id. The Plaintiffs’ proposed amendments 

(Continued) 

32 
33 

IV. 

 Pursuant to the foregoing, the judgment of the district 

court is affirmed. 

 AFFIRMED

 

— relabeling Count V as Count IV and deleting all references to 

the Consent Decree — would be futile; therefore, the district 

court did not err in this respect. Finally, we are not 

satisfied that the Plaintiffs sufficiently requested a hearing 

by way of their February 23, 2007 letter to the court. In any 

event, nothing in the Federal Rules of Civil Procedure obliged 

the court to hold a hearing in that situation; thus, the court 

could not have abused its discretion in declining to do so.